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to these within two months. The Greek IV — Submissions of the parties authorities did not reply to that letter either.

5. The Commission, therefore, brought the present action for failure to fulfil obli- 1. The Commission gations on 11 October 2000, in which it claims that the Court should

7. The Commission concludes from the fact that Greece has failed to notify it of any — declare that, by failing to adopt or, in transposing measures that Greece has failed the alternative, to notify to the Com- to transpose the directive into national law mission, within the prescribed period, within the period prescribed. the laws, regulations and adminis- trative provisions necessary to comply fully with Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, the Hel- 8. Given the extensive amendments intro- lenic Republic has failed to fulfil its duced by Directive 97/11 and which it lists obligations under the Treaty; individually in its reply, the Commission considers that the national legislation adopted to transpose Directive 85/337 is not sufficient to satisfy the obligation to transpose Directive 97/11. As confirmation — order the Hellenic Republic to bear the of its view, the Commission referred in the costs of the proceedings. oral procedure to a press release of 31 January 2002 from the Greek Minister for the Environment in which notice was given of an amending law intended to transpose 6. The Hellenic Republic contends that the Directive 97/11. Court should

13. According to the new version of the first subparagraph of Article 2(3), Member States must have regard to the provisions of Article 7 if they choose to exempt a project 2. Hellenic Republic from the provisions of Directive 85/337. (Article 7 provides for the notification of another Member State if a project has significant effects on the environment in that Member State.) Greece, however, does not border on another Member State of the 10. In its defence, the Hellenic Republic European Union, so Article 7 is not appli- contends that it has already comprehen- cable to Greece. There has not, to date, sively transposed the earlier Directive been a single case in which Article 7 of the 85/337, so that the amendments sub- directive would have had to be applied with sequently introduced by Directive 97/11 regard to Italy, the only Member State of have already been incorporated into Greek the European Union with which Greece law. Its reasoning in relation to the indi- shares a maritime border. There is, there- vidual provisions is as follows. fore, no need for Article 2(3), first sub- paragraph, and Article 7 to be transposed.

11. The new version of Article 2(1) requires all projects likely to have signifi- cant effects on the environment to be made 14. Under the new version of Article 3, the subject to a requirement for development environmental impact assessment must consent. This is already the case under now also take into account the interaction Greek Law No 1650/86 on the protection of the environment, pursuant to which all projects are subject to development con- 4 — Council Directive of 24 September 1996 on integrated sent. pollution prevention and control (OJ 1996 L 257, p. 26).

16. According to the new version of Article 5, the competent authority must give an opinion on the information to be supplied by the developer within the con- sent procedure, if so requested by the developer or the Member State. These changes have already been incorporated 19. The requirements of Article 6(2) con- into Greek law by Interministerial Reso- cerning public consultation have also lution 69269/5387/90, as well as by Cir- already been met. Interministerial Resol- culars 17/94 and 9/96. ution 75308/5512/90 provides that the Prefectorial Councils, which are respon- sible for giving public notice, must within 15 days invite the public to raise any objections to the project. No more than 30 days may elapse between public notice and submission of representations. In prac- 17. As regards the complaint that the tice, however, the process takes an average information in the questionnaire is insuffi- of 2.6 months. The public thus has a cient to assess environmental impact, the 'reasonable time' to express an opinion

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within the meaning of Article 6(2). Fur- olds adopted in accordance with thermore, the Greek authorities are pres- Article 4(2). This amendment is taken into ently drawing up draft legislation to, inter account in the proposed 'formal transposi- alia, extend time-limits for public consul- tion' of Directive 97/11. tation.

20. The amendments introduced by the new version of Article 8 have, again, 24. Article 13 of Directive 85/337 has been already been transposed into Greek law. deleted, as it goes without saying that (Article 8 relates to the results of the Member States are entitled to adopt stricter consultation procedure and the infor- rules in respect of the scope of application mation gathered.) of and procedure for the environmental impact assessment than those laid down in the directive.

29. The Greek Government's basic objec- tion is that it has already transposed Directive 97/11 into national law through 27. The Greek Government denies the the comprehensive transposition of Direc- infringement, claiming essentially that tive 85/337, especially in relation to the Greek legislation which had already been amendments to Articles 2(1) and 4 (selec- adopted in order to transpose Directive tion of projects requiring development 85/337 satisfies the requirements of Direc- consent), Article 3 (scope of the environ- tive 97/11, and that no further transposing mental impact assessment), Article 6(1) measures are necessary. (authorities to be consulted), Article 8 (consideration of the results of consul- tations and information gathered), and Article 10 (respect of industrial rights), and Annexes I and II (list of projects affected), and in relation to the insertion 28. According to the case-law, this defence of a new Annex III (selection criteria for cannot be dismissed out of hand. The Court projects). The Greek Government refers in has in fact acknowledged that there are this respect to Law No 1650/86 as well as cases in which the transposition of a to I n t e r m i n i s t e r i a l R e s o l u t i o n s directive does not necessarily require the 69269/5387/90 and 75308/5512/90. The legislator to act in every Member State. But Commission does not discuss to what even in these cases, the relevant national extent these provisions satisfy the require- law must indeed guarantee that the direc- ments of the provisions of Directive 85/337 tive is fully applied by the national auth- as amended by Directive 97/11. Instead, it orities, that the legal position arising from highlights only the differences between the such law is sufficiently determined and two directives. clear, and that the beneficiaries are in a position to know all their rights, and, if necessary, to enforce them in the national courts. 5The question whether Greek law does in fact satisfy the requirements of Community law must therefore be exam- ined with respect to each provision of Directive 97/11. 30. According to settled case-law, in infringement proceedings it is incumbent 5 — Case 29/84 Commission v Germany [19851 ECR 1661, upon the Commission to prove the exist- paragraph 23; Case C-365/93 Commission v Greece (19951 ECR I-499, paragraph 9. ence of the alleged infringement and to

3. Transposition of the amended version of 31. As regards the provisions of the direc- Article 2 (2a) (administrative procedure) tive at issue here, the Commission has not succeeded in providing this proof. In its submission, the Commission merely lists all the amended provisions of Directive 85/337, and concludes from the non-com- munication of any transposing measures, that these provisions have not been trans- posed into Greek law. That is not sufficient 33. Greece denies that it has an obligation proof in these proceedings, because Greece to transpose Article 2(2a). Indeed, this has disputed any infringement of its trans- provision merely states: 'Member States posing obligation in respect of every single may provide for a single procedure in order one of these provisions and provided evi- to fulfil the requirements of [Directive dence in each case. It was, therefore, 97/11 and of] Council Directive 96/61/EC incumbent upon the Commission to of 24 September 1996 on integrated pollu- respond to the Greek submissions and to tion prevention and control.' The provision explain why the abovementioned national does not, therefore, establish any obligation provisions of Law No 1650/86, and Inter- in this respect. ministerial Resolutions 69269/5387/90 and 75308/5512/90, do not satisfy the require- ments of Community law. Those provisions had evidently already been notified by the Greek Government in November 1990 in Appendix I of its reply to the Commission's reasoned opinion of 9 August 2000 in Infringement Procedure No 1991/2036. 34. In the oral procedure, the Commission 6 — Case C-159/94 Commission v France [1997] ECR I-5815, also conceded that that provision does not paragraph 102; Case C-96/98 Commission v france [1999] impose any obligation on Member States to ECR I-8531, paragraph 36; Case C-337/98 Commission v France [2000] ECR I-8396, paragraph 45. establish a common administrative pro- 7 — Case C-62/89 Commission v France [1990] ECR I-925, cedure. Therefore, in that regard no paragraph 37; Case C-244/89 Commission v France [1991] ECR I-163, paragraph 35. infringement can be established.

35. The first subparagraph of Article 2(3) of Directive 85/337 in the version of Directive 97/11 states: 'Without prejudice to Article 7, Member States may, in excep- tional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.' Under Article 7, a Member State must involve another Member State in the environmental impact assessment procedure if it is aware 'that a project is likely to have significant effects on the environment in another Member 38. The only exception to this rule is State or where a Member State likely to be where, for geographical reasons, there significantly affected... requests [partici- would be no purpose in transposing the pation]'. directive.9 This is what the Greek sub- mission seems to be addressing. However, such an evident exception cannot be inferred in this case. The wording of Article 7 is not predicated on the existence of a common border, but on the issue of whether a project could have an effect on another Member State. In practice, the 36. Greece's defence against the allegation spatial proximity of other Member States of infringement is that those articles do not may well be relevant in this respect. But the apply to Greece. It does not have a land provision is not predicated on whether or border with other Member States of the not there is a common (land) border with European Union. Only with Italy does it other Member States. This is consistent have a common maritime border. How- with the fact that the possible effects of ever, there has not, to date, been a single environmental pollution can spread over case in which Article 7 of the directive has wide areas. Thus the Greek Government's applied as between Greece and Italy. objection does not support the argument that there are no projects within the meaning of Articles 2(3) and 7 in Greece.

6. Transposition of the amended versions 5. Transposition of the amended version of of Article 6(2) (participation of the public) Article 5 (information to be supplied by the and Article 9 (notice of consent decisions) developer)

41. In the oral procedure, the Commission 43. With regard to the transposition of complained that the information to be Articles 6(2) and 9, the Greek Government supplied in the questionnaire which a refers not only to existing laws, but also to developer must complete does not satisfy current administrative practice. the requirements of Article 5 and, fur- thermore, that the authorities simply issue development consent if, or, in so far as, no objections are put forward. The Greek Government responded by pointing out that the questionnaire is relevant only in the context of preliminary approval of the (a) Transposition of the amended version location. It is not a substitute for the of Article 6(2)

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48. The Commission, for its part, has not 51. As already set out above, a reference to argued that the time-limit of 15 days is an existing administrative practice is not unreasonable. It has neither presented sufficient to show that a Member State has comparisons with other Member States, complied with its obligation to transpose. nor illustrated its objection with examples Nor do the arguments set out above in which objections could not be raised establish that Greece does not have an because of the short period of time allowed obligation to transpose Article 7. Accord- or were rejected as being inadmissible. ingly it may be inferred from the Greek Government's submissions that Greece has failed to fulfil its obligation to transpose the amended version of Article 9.

49. As a result, it must be concluded that the Commission has not established any infringement in relation to Article 6(2) of Directive 85/337, as amended by Directive 97/11.

7. Transposition of the amended version of Article 11(2) (notification of criteria for case-by-case examination) (b) Transposition of the amended version of Article 9 (notice of consent decisions)

VI — Costs

54. The Court has already, on several occasions, decided that the issue of lack of notification should no longer be considered in cases where infringement of specific obligations under a directive has been 56. According to paragraph 2 of Article 69 established. 13 Since an infringement has of the Rules of Procedure, the unsuccessful been established in relation to Articles 2(3), party is to be ordered to bear the costs if 7, 9 and 11(2), the lack of notification in they have been applied for in the successful this respect need not be discussed further. party's pleadings. Under paragraph 3 of that provision, the Court may, however, order the costs to be shared, or order each party to bear its own costs if the parties partly succeed and partly fail, or in excep- tional circumstances.

55. As regards the remaining provisions, it is not disputed that Greece failed to inform the Commission of any transposing meas- ures in relation to Directive 97/11. Greece did not even refer to its communication of 57. The Commission has not, in this case, 1990 by which it informed the Commission been able to prove inadequate transposition of the legislation adopted to transpose in relation to all the provisions. It has, therefore, been unsuccessful as to part of its action. Only in so far as the infringement 13 —Case C-303/93 Commission v Italy [1994| ECR I-1901, has been conceded can it be considered to paragraphs 6 and 7; Case C-65/94 Commission v Belgium, have been established. Nevertheless, it does [1994| ECR I-4627, paragraph 5; Case C-365/93 Com mission v Greece, cited in note 5, paragraphs 12 and 13. not seem appropriate to share the costs.

(2) By failing, within the period prescribed, to notify the Commission of the provisions adopted to transpose fully Articles 2(1) and (2a), 3, 4, 5, 6(1) and (2), Articles 8, 10, and 13, and of Annexes I, II, III and IV to, Council Directive 97/11 the Hellenic Republic has failed to fulfil its obligations under the Treaty.

(3) The Hellenic Republic is to bear the costs of the proceedings.

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